Education Law Insights

Disciplining Student Speech As A Threat After Newtown – The Right Choice?

Posted by Brian Crowley on January 14, 2013

The media coverage of the Sandy Hook school shooting is tapering down, but the lessons for school administrators in its wake are just beginning. One such lesson comes after a California school suspended a high school senior for writing a poem about the Connecticut tragedy. The case provides an opportunity to consider the standards for when student speech is protected, even if it is controversial, and when it is a red flag warranting discipline and other school action.

The Facts

In late December, the Life Learning Academy suspended a 17-year old student for a poem she wrote about the shooting at Sandy Hook Elementary School in Newtown, Connecticut. The poem included lines such as “I understand the killings in Connecticut. I know why he pulled the trigger.” The student told ABC News that the meaning of the poem is about society and how she understood why things like the incident happened. She explained that she wasn’t agreeing with the actions of the shooter, but “that’s how the school made it seem.” She stated that she’d written poems about suicide and sadness in the past because it is a genre that she likes, comparing herself to Stephen King who “writes weird stuff all the time. That doesn’t mean he’s going to do it or act it out.”

The student reportedly neither turned in the poem to school employees nor distributed it to others in the school community. Rather, a teacher came across the poem in a notebook and turned it into the school’s principal. According to one account, the school—which is a non-residential high school located on Treasure Island, a former US Navel base in the middle of the San Francisco Bay—and the San Francisco Unified School District are reportedly considering expelling the student. The school has a zero tolerance approach to violence or threats of violence.

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Public Entity Deletes Comments From Facebook Page: The Right Choice?

Posted by Brian Crowley on November 30, 2012

A recent Illinois Attorney General opinion addressed an interesting question: Can a public entity delete comments by community members from its Facebook page? Although the public entity at issue was a municipality, the opinion raises a number of interesting issues for public schools. The Attorney General addressed the question under the Illinois Open Meetings Act (the OMA), and found no violation under that specific law. But, if a court were to address the issue under the First Amendment of the federal Constitution, it is less clear that the public body would prevail. Notably, the First Amendment issue – discussed in part 3 below – is relevant even for school districts outside of Illinois. The decision is a warning to public entities, including school districts, across the country to carefully consider the basis of a decision to delete a user comment from a social networking page.

The Facts

The opinion centered around criticism by a community member about a village’s Facebook page. An article in the Daily Herald provides the back story. The page came under scrutiny after the village trustee, who maintains the village’s Facebook page, deleted some items and comments from the page. As with most Facebook “fan” pages, users are allowed to comment on the “wall” of the page, but those comments can be deleted unilaterally by the person who maintains the page. The trustee justified the deletions by pointing to an uptick in negative comments and to complaints by other community members that they were reluctant to subscribe to the Facebook page because of negative comments.

The community member that brought the action, a former part-time police officer of the village, was one of the individuals whose comments were deleted. He complained on his blog about his comments being removed. In one post, he said that he would “be exploring remedies for [the village’s] action of censorship on a ‘supposed’ public site.” The Attorney General request for review appears to have been the individual’s first efforts at finding such a remedy.

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Texas School Bans Cheerleaders’ Religious Football Banners: The Right Choice?

Posted by Brian Crowley on October 12, 2012

Next week a Texas state court will address a lawsuit filed by Kountze High School cheerleaders on some of the hottest issues in Texas: religion, schools, and football. The cheerleaders allege that their school superintendent prohibited them from writing religious messages on banners at football games, in violation of the First Amendment. The case wades into the murky legal waters regarding student-initiated prayer at school events. Was the school district’s decision the right choice? Here is this school lawyer’s take.

The Facts

The Kountze High School cheerleaders, dressed in uniform, hold 30’ x 10’ banners for their football team to run through at the beginning of football games. Cheerleaders use such banners across the country, typically with sayings like “Beat the Bulldogs” or “Trounce the Tigers,” and the cheerleaders are typically allowed to choose what is on the banners. But these Texas cheerleaders chose sayings from the Bible for their signs. An example of the language used is: “But thanks be to God, which gives us Victory through our Lord Jesus Christ. 1 Cor. 15:57.”

Based on a letter from the Freedom From Religion Foundation (FRFF), which advocates for the separation of church and state, the school district superintendent prohibited the cheerleaders from unfurling further religious banners. The story since has gone viral, with recent coverage by the New York Times, the Wall Street Journalthe Washington Post and the Los Angeles Times. Last week, a Texas state court judge refused to grant the cheerleaders a temporary injunction, but reportedly did agree to extend a temporary restraining order until the parties could meet in court to address the cheerleaders’ request for a permanent injunction. The parties will face off in court next week.

Tenuous Confidence

Both sides appear quite confident in their legal arguments, but there is no court case that directly addresses the issue before the Texas court. In its written response to the lawsuit, the school district relied on a 2000 United States Supreme Court case, Santa Fe v. Doe, in which the Court struck down a school district policy allowing student-led prayer over a loud speaker before football games. The FRFF also relied on that decision in a brief in support of the school district. (more…)